GENE LENOX GORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gene Gore appealed the summary denial of his 3.850 motion for postconviction relief, which raised three claims of ineffective assistance of counsel during his probation violation hearing. The Florida District Court of Appeal affirmed denial of two claims but reversed as to the third claim regarding counsel's failure to call witnesses, finding the trial court failed to address a portion of that claim.
The court reversed the summary denial of the ineffective assistance claim as to the portion regarding counsel's failure to call witnesses, holding that because the trial court failed to address Gore's allegations about what the witnesses would have testified and the record did not conclusively refute those allegations, Gore was entitled to an evidentiary hearing on that portion of his claim.
[1] A postconviction court must address all portions of an ineffective assistance of counsel claim, and if a portion is not addressed and not conclusively refuted by the reco…
[2] A claim of ineffective assistance of counsel for failing to call witnesses is facially sufficient if it alleges facts that, if proven, would show the defendant did not co…
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Join FLexlaw to unlock all legal intelligence“If a motion presents a facially sufficient claim of ineffective assistance of counsel for failing to call a witness, the movant is entitled to an evidentiary hearing unless the motion is conclusively refuted by the record or is otherwise procedurally barred.”
Establishes the legal standard for evaluating ineffective assistance claims based on failure to call witnesses; requires evidentiary hearing unless claim is conclusively refuted by the record.
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Join FLexlaw to unlock all legal intelligenceGore was convicted of grand theft in 2005 and placed on probation. He was subsequently found to have violated probation by stalking a woman with whom …
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Gene Gore challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. His motion raises three claims of ineffective assistance of counsel at the time of his violation of probation (VOP) hearing. We affirm the summary denial as to two of those claims without further comment. But because the trial court failed to address one portion of Gore’s third claim and the attached portions of the record do not conclusively refute the claim, we reverse the summary denial of that claim.
Gore was convicted of grand theft in 2005 and was placed on probation. He was found to have violated that probation by stalking a woman with whom he had two children. His rule 3.850 motion claimed that his attorney was ineffective for failing to call Ashley, Austin, and Dylan Gore who would have testified to several *178identified facts that would have shown he did not stalk the victim.
The postconviction court denied the claim, concluding that the testimony would have been merely cumulative to the victim’s admission that she was spending many nights with Gore at the time of the alleged incident and to the testimony of Gore’s neighbor regarding how often the victim spent the night at Gore’s apartment. However, the postconviction court failed to address Gore’s allegations that the named witnesses would have testified that he was not stalking the victim, that he was actually the victim of violence at the hands of the alleged victim, and that his only concern during that time was for the welfare of his children. Because this portion of the claim of ineffective assistance for failing to call witnesses was not addressed by the postconviction court and is unrefuted by the attached portions of the record, we reverse the summary denial of the rule 3.850 motion as related to counsel’s alleged failure to call witnesses and we remand for reconsideration of that claim. See Gutierrez v. State, 27 So.3d 192, 194 (Fla. 5th DCA 2010) (“If a motion presents a facially sufficient claim of ineffective assistance of counsel for failing to call a witness, the movant is entitled to an evidentiary hearing unless the motion is conclusively refuted by the record or is otherwise procedurally barred.”).
Affirmed in part, reversed in part, and remanded.
SILBERMAN, C.J., and ALTENBERND, J., Concur.
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O'Steen v. State, 247 So. 3d 88 (Fla. 1st DCA 2018)
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DeANGELO v. State, 141 So. 3d 1269 (Fla. 2d DCA 2014)…because the postconviction court erred in failing to consider DeAngelo’s facially sufficient claim that he did not receive credit for time served in Polk County jail, we reverse and remand for further proceedings as to that claim. See Gore v. State, 100 So. 3d 177, 178 (Fla. 2d DCA 2012) (reversing and remanding because the postconviction court failed to address a claim and the attachments did not conclusively refute the defendant’s allegations). As it appears that DeAngelo is currently scheduled for releas…
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Walker v. State, 137 So. 3d 1 (Fla. 2d DCA 2014)…elief. See Fla. R.Crim. P. 3.850(a)(4); Gonzalez v. State, 890 So. 2d 1194 (Fla. 5th DCA 2005). In addressing Mr. Walker’s motion, the postconviction court failed to address this claim. Such an omission is reversible error. See, e.g., Gore v. State, 100 So. 3d 177, 178 (Fla. 2d DCA 2012). Mr. Walker pleaded guilty to three counts of lewd and lascivious conduct and one count of lewd or lascivious molestation, all second-degree felonies. See § 800.04(5)(c)(2), (6)(b), Fla. Stat. (2011). The trial court orally…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gutierrez v. State, 27 So. 3d 192 (Fla. 5th DCA 2010)